Following the Grokster decision there has been a lot of speculation about whether BitTorrent would be liable under the court's enunciated active inducement standard. Many think that BitTorrent is safe, in particular due to the lack of evidence of illicit intent. But what if there is evidence of illicit intent? A statement from Cohen in 2001 might be that evidence.

Prof. Mark Schultz of the Southern Illinois School of Law is guest-blogging on Eric Goldman's Technology & Marketing Law Blog. He took two close looks at the issue. First, on the simple question of BitTorrent itself: What Happens to BitTorrent After Grokster?. In response to a question of mine, he also addressed the additional questions raised by BitTorrent Search and the new, trackerless BitTorrent: More on BitTorrent and Grokster. His conclusion was that BitTorrent is protected because of its innocent intent:

So, would Cohen and the other original BitTorrent developers be on the hook as inducers? Probably not. There appears to be no “clear expression or other affirmative steps taken to foster infringement.”

Ed Felten also sees BitTorrent as the next big test case, and also thinks they'll survive: BitTorrent: The Next Main Event.

The litmus test is BitTorrent. Here is a technology that is widely used for both infringing and non-infringing purposes, with infringement probably predominating today. And yet: It was originally created to support noninfringing sharing (of concert recordings, with permission). Its creator, Bram Cohen, seems interested only in noninfringing uses, and has said all the right things about infringement — so consistently that one can only conclude he is sincere. BitTorrent is nicely engineered, offering novel benefits to infringing and noninfringing users alike. It is available for free, so there is no infringement-based business model. In short, BitTorrent looks like a clear example of the kind of dual-use technology that ought to pass the Court’s active inducement test. [emphasis added]

Perhaps Cohen is not as sincere as all that: A Technological Activist's Agenda:

I am a technological activist. I have a political agenda. I am in favor of basic human rights: to free speech, to use any information and technology, to purchase and use recreational drugs, to enjoy and purchase so-called 'vices', to be free of intruders, and to privacy.

I further my goals with technology. I build systems to disseminate information, commit digital piracy, synthesize drugs, maintain untrusted contacts, purchase anonymously, and secure machines and homes. I release my code and writings freely, and publish all of my ideas early to make them unpatentable.

Technology is not a panacea. I refuse to work on technology to track users, analyze usage patterns, watermark information, censor, detect drug use, or eavesdrop. I am not naive enough to think any of those technologies could enable a 'compromise'.

Despite my emphasis on technology, I do not view laws as inherently evil. My goals are political ones, even if my techniques are not. The only way to fundamentally succeed is by changing existing laws. If I rejected all help from the political arena I would inevitably fail.

-Bram Cohen [emphasis added]

History of the statement: According to Wikipedia, BitTorrent debuted at CodeCon 2002 (Wikipedia: BitTorrent). According to the Internet Archive's Wayback Machine, Bram Cohen posted the page to his website sometime no later than Jul 10, 2001 (Wayback Machine: http://bitconjurer.org/a_technological_activists_agenda.html : Jan 01, 1996 - Jun 28, 2005). Originally this statement was linked from his front page (Wayback Machine: http://bitconjurer.org/ : Jan 01, 1996 - Jun 28, 2005). The link remained until at least Jul 20, 2003, but had disappeared by Jul 31, 2003. In between his homepage had been updated at least 7 times.

Question: How far will a lawsuit under the active inducement standard as articulated in Grokster go with this statement? Will this open the door to discovery? Will this make the addition of search engine (with advertisements) look like a bad act? Will it make trackerless BitTorrent look like a bad design decision?

Perhaps BitTorrent is a more difficult case than one might think.

UPDATE 1840PT

Just thought to check something else on the Wayback Machine. The link to the "activist's agenda" shows up in the very first snapshot of the homepage on Jul 6, 2001. The very first link to the BitTorrent project shows up on Jul 20, 2001. The statement and the BitTorrent project consequently seem rather close together in time.

UPDATE 1900PT

Just to note something from above (since I'm linking to so many Wayback Machine archives): the "activist's agenda" is still on Bram Cohen's website: A Technological Activist's Agenda.